Earlier this week, former Defense Secretary Donald Rumsfeld appeared on the Colbert Report, not as a guest, but as a guest of a guest. Stephen Colbert was interviewing Errol Morris, who recently finished a documentary looking at Rumsfeld's tenure, The Known Unknown. Colbert showed a clip in which Morris interviews Rumsfeld about the "torture memos," legal briefs created by the Bush Justice Department to allow techniques like waterboarding. Democracy Now has a partial transcript:
ERROL MORRIS: What about all these so-called torture memos?
DONALD RUMSFELD: Well, there were what? One or two or three. I don’t know the number, but there were not all of these so-called memos. They were mischaracterized as torture memos, and they came not out of the Bush administration, per se; they came out of the U.S. Department of Justice, blessed by the attorney general, the senior legal official of the United States of America, having been nominated by a president and confirmed by the United States Senate overwhelmingly. Little different cast I just put on it than the one you did. I’ll chalk that one up.
ERROL MORRIS: Was the reaction unfair?
DONALD RUMSFELD: Well, I’ve never read them.
ERROL MORRIS: Really?
DONALD RUMSFELD: No. I’m not a lawyer. What would I know?
Differentiating between the Bush administration and the Department of Justice is a peculiar line of argument. As Morris says in the Democracy Now interview, Rumsfeld "retreats into a kind of strange Looney Tunes world of language, where he thinks if he can just find the right set of words, everything will be OK." And it's important to note the next words out of Rumsfeld's mouth in the clip above: that he never read the memos anyway.
The man who wrote those memos was John Yoo, who was then serving as deputy assistant attorney general at Justice (but not, per Rumsfeld, as part of the administration). Yoo appeared at Drexel University in Philadelphia even as Cheney was speaking in Washington. "Yoo and other Justice Department lawyers concluded that only interrogation techniques inflicting severe pain or severe and permanent bodily injury, such as organ damage, and death were banned from use by U.S. forces," the Philadelphia Enquirer writes about Yoo's appearance. His argument on Thursday mirrored Cheney's: "I do stand by the line that we drew." That despite a 2010 Department of Justice review indicating that his legal analysis was flawed.
Early in his administration, President Obama told the CIA that he didn't support prosecutions for the agency's role in the torture program. In 2012, Attorney General Eric Holder officially ruled out any prosecutions based on the "enhanced interrogation" systems on the whole.
That position may become more politically unstable. The CIA and the Senate Intelligence Committee are embroiled in a fierce dispute over a report that the latter has drafted which outlines how the CIA's torture system worked. According to one report, the Senate committee learned that CIA torture may have predated those memos, and that the CIA may have exaggerated the utility of information it got from one tortured detainee. The Senate appears to have also found instances in which the CIA offered public statements that conflict with its private analysis, thanks to a report it obtained through a CIA error.